Section 14 (1) of the Constitution and access to land

SHARE | Sunday, 03 August 2014 | By Dr Boga Manatsha

Last week, I focused on section 8 of Botswana’s constitution as it relates to the ownership of property and land. I discussed the circumstances under which one can have his/her land repossessed by the state. I concluded that repossessing land, for whatever reasons, shall remain a contested terrain. I implored the government to make concerted efforts to clearly and constantly engage the affected communities when repossessing their land. It is important that alternative land is sought for those who lose their land. Land has deep-seated meanings amongst Africans, and Batswana are Africans. Today, I look at section 14 (1) of Botswana’s constitution and try to relate it to the access to and ownership of land in Botswana. This section states, in part, that “No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana”. My main interest is in the last part, which reads thus “the right to reside in any part of Botswana”. No matter how we look at it or how we want to see it, the ownership of and the access to land in Botswana, especially tribal land, still has connotations of tribalism. I know many government officials do not want to hear this. I will tell them the way it is, loud and clear.

The Tribal Land Act (TLA) was reviewed in 1993 to make access to and ownership of tribal land democratic and inclusive. In Botswana, tribal mistrust, tribal hegemony, tribal superiority and inferiority, and misplaced claims that some merafe (tribes) truly belong to this country than ‘others’ still exist. All these, to some extent, undermine access to tribal land and hinder effective land administration. When the president announced his controversial land quota system in Bokaa in the Kgatleng district in early 2013, the residents were unhappy that some people come from afar and take their land (in connivance with the land board). It is not uncommon that some would remark that “batho ba tswa ko bo Zwenshambe” to grab our land. The government was and still is very naïve to think that by reviewing the TLA- tribalism would be buried in Botswana. Tribalism is not something that can be corrected by a stroke of a pen. There is nowhere in Africa that you will find the graveyards of tribalism. It is a form of extreme tribal loyalty, feeling that your own morafe is superior to others. When it comes to the distribution of resources and safeguarding certain interests, tribalism can be corrosive, divisive and retards development.

Since 2012, the debate on the land question in Botswana has challenged the official view that the review of the TLA was a step in fighting tribalism. Since then, the equal access to land by all as enshrined in the TLA and the constitution is being questioned. Cowardly, the government evaded the issue. Instead, it proposed a confusing “land quota”- which contradicts the constitution, the TLA and Vision 2016. Let me go back to section 14 (1). It says all Batswana have “the right to reside in any part of Botswana”. This right is, however, practically frustrated, in some cases, by agencies tasked with overseeing that Batswana’s access to tribal land is executed without fear and favour. I explain how the system of land overseers sometime frustrates this section. Land overseers are individuals, in most cases, the close relatives of the dikgosi. They are appointed by the kgosi to assist in the administration (allocation) of tribal land. Some land overseers would deny people the right to reside in their villages simply because they are from a different morafe. It happens. Land overseers are supposed to append their signatures in the application form for customary land rights/use, consenting that the land sought is empty/vacant. Some land overseers would argue that the allocation of land to “outsiders” would disadvantage the “tribesmen”.

In many cases, when dealing with the so-called outsiders, the land overseers become tribalistic, mean, rude and very uncooperative. It happens all over Botswana, and it is not specific to any morafe. The land boards would insist that the applicant’s get the land overseers’ approval. Caught in confusion and dilemma, the applicant, usually a stranger in the village, gives up. Such cases contravene section 14 (1) of the constitution and the TLA section 10. The scenario I describe above shows that access to tribal land in Botswana, as much as the land overseers are still in charge, would always assume tribal connotations. Sadly, many Batswana are unaware that the land overseer’s signature cannot stop one from claiming his/her right under the constitution. I agree that the land overseers’ intervention is a mere requirement by the land boards to ensure that they work closely with the communities. Annoyingly, some land boards fail to reign in some uncooperative land overseers who are drunk with power! In bizarre cases, some of them just look at your surname, and easily tell that this one is an ‘outsider’. I implore Batswana to approach the relevant authorities if they meet such unscrupulous and tribal bigots disguising as land overseers. As much as section 14 (1) is clear on the right to reside anywhere in Botswana, the practical situation on the ground is different. The government knows this, I know it, and you know it.